Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

HANLEY, Judge.

Eugene G. K. Laschober was convicted of felony driving under the influence. On appeal, Laschober claims that he was stopped unlawfully and that the trial court erred when, during the jury voir dire proceedings, it inadvertently suggested that Laschober was charged with a felony. For the reasons explained in this decision, we affirm the judgment of the superior court.

Facts and proceedings

Alaska State Trooper Phillip N. Duce testified that on June 9, 2011, he saw Laschober driving a vehicle in Wasilla without its headlights illuminated. It was 3:35 a.m., and sunrise in Wasilla on that day occurred at 4:19 a.m. Under 13 Alaska Administrative Code (AAC) 04.010(a)(1), drivers are required to have their lights on "between one half hour after sunset and one half hour before sunrise[.]" In other words, Laschober was required to have his vehicle's lights on until 3:49 a.m.

Trooper Duce testified that he stopped Laschober for this violation and because he saw him cross the centerline of the road. Upon contact with Laschober, Duce noticed signs that he was intoxicated. After administering field sobriety tests, he arrested Laschober for DUI. Later, a DataMaster test showed that Laschober's breath alcohol content was .178 grams of alcohol per 210 liters of his breath. Ultimately, because he had two prior qualifying convictions, the State charged Laschober with felony driving under the influence.1 It also charged him with driving while his license was suspended.2

Laschober moved to suppress evidence and dismiss the case on the ground that Duce did not have "articulable facts sufficient to stop" him. He claimed that all the "uncontroverted evidence" showed that Laschober's headlights were activated. Superior Court Judge Vanessa White held a hearing to resolve the motion.

At the hearing, Trooper Duce testified that he and Laschober were driving in opposite directions on Seldon Road and that Laschober's headlights were not turned on. After the two vehicles passed each other, Duce saw that Laschober's taillights also were not turned on. Duce watched in his mirror as Laschober sped up and crossed the centerline.

Duce testified that he stopped Laschober because "it was at night and it was the time of the day where headlights are required," and because Laschober's vehicle had crossed the centerline of the roadway. Duce also testified that during the traffic stop Laschober admitted that his headlights were off.

Laschober had an expert testify on his behalf. The expert explained that the vehicle he was driving had automatic lights. That is, the headlights and taillights automatically activate when the vehicle is turned on and they remain on until the ambient light reaches a certain level.

But the expert also explained that the driver can manually deactivate the lights by turning the light switch to the left. If that is done, then the headlights and the taillights turn off. The switch is spring-loaded and will immediately return to the "automatic" position, although the lights will remain off. The next time the vehicle is turned on, the headlights and taillights will activate and will remain on until the driver again turns them off, or until they turn off automatically because of the ambient light level.

Laschober's wife testified that she usually drives the vehicle Laschober was driving that night and she did not think he knew how to turn the headlights off. She testified that she did not know the driver could do so.

Finally, Laschober testified. He said that his headlights were on, that they came on automatically, and that he did not know how to turn them off.

After the hearing, the trial court denied Laschober's motion. The judge accepted Duce's testimony that the headlights and taillights were off and ruled that Duce had probable cause to stop Laschober for a traffic violation.

The parties then proceeded to trial. When pro tem Superior Court Judge John W. Wolfe addressed the jury venire panel to discuss how long the trial could be expected to last, he said that "it would be unusual that ... we could complete a felony — or, excuse me, a trial in two days[.]"

Laschober asked for a new panel on the ground that, although the mention of "felony" was inadvertent, it "probably provided at least some sort of taint with this pool." The trial court denied the request.

In a bifurcated trial, the jury convicted Laschober of driving while his license was suspended and felony DUI.

This appeal follows.

There was probable cause for the traffic stop

Whether probable cause for a traffic stop exists is a mixed question of fact and law.3 We view the evidence in the light most favorable to the trial court's ruling and overturn its factual findings only if they are clearly erroneous.4 We independently review whether those facts justify a finding of probable cause.5

Normally, an officer who directly observes a violation of the traffic code has probable cause to conduct a traffic stop.6 The traffic code requires vehicles to have illuminated lights between one-half hour after sunset and one-half hour before sunrise.7 Trooper Duce testified that he saw Laschober driving a vehicle more than one-half hour before sunrise without its headlights or taillights activated.

On appeal, Laschober makes two arguments concerning his lights. He first claims that he was not required to have his lights on at the time of the traffic stop. Second, he claims the trial court erred when it found his vehicle lights were not illuminated.

As indicated above, 13 AAC 04.010(a)(1) requires drivers to have their lights on "between one half hour after sunset and one half hour before sunrise." In the trial court, Laschober acknowledged that Duce stopped him at 3:35 a.m. on June 9, 2011, in Wasilla. Laschober also attached a "sunrise/sunset calendar" to his suppression motion that indicated the sunrise on June 9 in Wasilla was at 4:19 a.m. — meaning that Laschober was required to have his lights on until 3:49 a.m., fourteen minutes after the traffic stop.

But contrary to his position in the trial court, Laschober asserts on appeal that sunrise in Wasilla on June 9 was at 3:19 a.m., not 4:19 a.m. Based on this assertion about the time of sunrise, Laschober argues at length that there was absolutely no justification for the traffic stop — since (according to his calculation) the sun had already risen when the traffic stop took place.

The State, in its brief, points out (1) that Laschober took a different position in the trial court, (2) that information available from incontrovertible sources shows that the sunrise occurred at 4:19 a.m., and (3) that Laschober's attorney made the error of not adjusting for daylight savings time.

Laschober's reply brief is completely silent on this issue. Laschober's attorney neither disputes the State's assertion nor does he concede that his own calculation is wrong. He simply does not mention that he is offering a different time for the sunrise.

We take judicial notice that 4:19 a.m. is the correct local time for the sunrise in Wasilla on June 9, 2011. See the National Oceanic & Atmospheric Administration's "solar calculator," available at http://www.esrl.noaa.gov/gmd/grad/solcalc/— a source that both Laschober and the State rely on for their assertions about the time of sunrise. It is apparent that Laschober's attorney failed to use the daylight savings time adjustment when he consulted the solar calculator.

We are troubled by Laschober's attorney's handling of this issue. We assume that the attorney is not trying to deceive us, and that his false assertion in his opening brief that the sunrise occurred at 3:19 a.m. is due to his inadvertent failure to adjust the calculation for daylight savings time. Nevertheless, Laschober's attorney is under a duty to acknowledge this problem in his reply brief.

In these circumstances, where the State clearly has shown that Laschober's attack on the traffic stop is based on a false assertion about the time of the sunrise, Laschober's attorney has a duty to concede that the State is correct and to affirmatively withdraw his mistaken argument that the traffic stop was unjustified because it took place after the sunrise. Alaska Rule of Professional Conduct 3.3(a)(1) declares that a lawyer shall not knowingly "make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal." (Emphasis added.)

Based on the testimony presented during the evidentiary hearing and the correct time of sunrise (4:19 a.m.), the trial court properly ruled that under 13 AAC 04.010(a)(1) Laschober was required to have his lights illuminated when Duce saw him at 3:35 a.m.

Laschober's second argument is that the trial court erred when it found that Laschober's vehicle lights were not illuminated. Because this is a finding of historical fact, we must affirm the trial court's finding unless it is clearly erroneous.8

As a preliminary matter, Laschober asserts that the trial court did not properly apply the Coleman test.9 Under Coleman, police are authorized to conduct investigative stops based on less than probable cause only when the police have reasonable suspicion that imminent public danger exists or that the person being detained had recently caused serious harm to persons or property.10 But Coleman does not apply when police have probable cause to make a traffic stop.11 Here, the court found that Trooper Duce had probable cause to stop Laschober.

Trooper Duce testified at the evidentiary hearing that when Laschober's vehicle approached him, he saw that the vehicle's headlights were off, and after he turned around and began to pursue Laschober's vehicle, he saw that the taillights were also off.

The only witness who directly contradicted Trooper Duce's testimony was Laschober himself. He testified that his lights were on. But the trial court found that Laschober made a statement to Trooper Duce during the traffic stop that was inconsistent with his testimony at the evidentiary hearing: Laschober admitted to Duce that his lights were off.

Laschober's expert witness (who described the working of the light switch in that model of vehicle) testified that the lights are generally set to "automatic" — meaning that the lights automatically come on when the ambient light is below a certain level. However, the expert also testified that there is no way to tell from looking at the physical position of the light switch whether the lights are currently set to automatic. According to the witness, the light switch in this model of vehicle is spring-loaded: even after the driver rotates the light switch to the "off" position, the switch springs back to the "automatic" position — but the lights stay off until the next time the vehicle's ignition is started.

Given this evidence, the trial court was not clearly erroneous when it found that Trooper Duce's testimony was credible and that Laschober's lights were not illuminated when Trooper Duce observed his vehicle. The evidence is sufficient to support the trial court's ruling that Trooper Duce had probable cause to stop Laschober for driving without his lights on.

Laschober did not show that he was subjected to a "pretext" stop

Laschober next appeals the trial court's denial of his claim that Duce's act of stopping him was a "pretext" stop. The trial court rejected Laschober's claim that the stop was an unlawful pretext stop based on Nease v. State.12 The judge did not articulate her findings on this claim; nor did Laschober request that she do so.

We discussed the doctrine of "pretext" stops in Morgan v. State,13 Grohs v. State,14 and Nease v. State.15 In those cases, we recognized that the United States Supreme Court had rejected the "pretext" doctrine in Whren v. United States16 and that Alaska's appellate courts have not yet decided whether to adopt the doctrine. However, we have clarified that the doctrine does not apply to all instances where a police officer has an ulterior motive for making a traffic stop. Rather, a traffic stop is a "pretext" only if the defendant proves that, because of an ulterior motive, the officer departed from reasonable police practices by making the stop.17

The focus of Laschober's "pretext stop" argument on appeal is a reiteration of his claim that the traffic stop was invalid. That is, Laschober does not argue that Duce observed a traffic infraction and used it as a basis to stop and investigate him for a different offense. Instead, Laschober repeats his argument that Duce had no legal basis to stop him. As we just explained, however, the evidence supported the trial court's conclusion that Duce was justified in stopping Laschober for a violation of 13 AAC 04.010(a)(1) — because Duce witnessed Laschober driving without his lights on more than thirty minutes prior to sunrise.

Laschober has pointed to no evidence that Duce harbored an ulterior motive for conducting the traffic stop. Moreover, as in Nease, Laschober made no showing that Duce departed from reasonable police practices by stopping him for driving at night without his lights illuminated and for crossing the centerline. At the hearing, Laschober did not question Duce on this issue, so there was no evidence with regard to reasonable police practices. In the absence of evidence to the contrary, the trial court could reasonably conclude that reasonable police officers might decide to stop a motorist for crossing the centerline and for driving without lights on during the hours when lights are required.

In short, Laschober has not shown that the trial court erred in rejecting his "pretext" claim.

Laschober was not entitled to a new jury panel just because the judge inadvertently mentioned the word "felony" during voir dire

As mentioned above, while Judge Wolfe was discussing with the potential jury panel the possible length of trial, he said, "if we don't complete the trial tomorrow and it's — it would be unusual that — if we could complete a felony — or, excuse me, a trial in two days, then we'd continue the trial for — until next Tuesday[.]"

Laschober claims that this was an "improper commentary to the jury." He argues that the trial court "violated Evidence Rule 404's prohibition against the admission of `propensity' evidence." But Laschober has not shown that the court's inadvertent comment requires reversal and a new trial. As the State points out, in Hewitt v. State18 and in Bradley v. State19 we found no prejudice in circumstances similar to Laschober's.

In Hewitt, during jury voir dire, the trial judge read the indictment to the potential jurors and started to read the language referring to a prior DUI conviction before correcting himself and telling the jury panel that he had "started to read the wrong thing."20 Hewitt's attorney requested a new panel, but we held that the trial judge did not abuse his discretion when he denied the request.21 We noted that the reference to the prior conviction was never completed, the trial court immediately told the jurors he had read the wrong thing, and the jurors were repeatedly instructed that the indictment was not evidence and their decision had to be based solely on the evidence.22

Likewise, in Bradley, during jury voir dire the trial judge, reading the indictment to the prospective jurors, told the jury panel that the State had charged Bradley with "felony driving under the influence — excuse me, driving under the influence."23 Bradley did not object. We found no plain error because the jurors were instructed that the indictment was not evidence, Bradley was presumed innocent, the State had the burden of proof, and the jurors were obligated to decide the case based on the evidence.24

Laschober's case is the same. When discussing with the potential jurors how long the trial might take, the trial court noted that it would be unusual "to complete a felony — or excuse me, a trial in two days." Like the judges in Hewitt and Bradley, the judge caught his mistake, essentially asked the potential jurors to disregard it, and then corrected his statement. Similar to the other two cases, immediately after the misstatement, the judge instructed the jurors that the charges were not evidence and did not create or permit any presumption or inference of guilt, the fact that charges were filed could not be considered for any purpose, the defendant is presumed innocent, the State has the burden of proving the elements of the charged crime beyond a reasonable doubt, the jury has to decide the case on the evidence, and the jury cannot convict a defendant based on mere suspicion or conjecture.

Laschober has not shown that these instructions were insufficient to cure any possible prejudice that arose from the trial court's inadvertent use of the word "felony." Accordingly, the trial court did not abuse its discretion when it denied the request for a new jury panel.

Conclusion

The judgment of the superior court is AFFIRMED.